ADJ-00009967, ADJ-00009968, ADJ-00009969, ADJ-00009970 & ADJ-00009971

 Parties

5 Complainants

Respondent

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00013018-001

08/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00013019-001

08/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00013020-001

08/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00013022-001

08/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00013023-001

08/08/2017

This dispute involves a claim by five complainants that they were discriminated against by the respondent, contrary to section 3 of the Equal Status Acts, 2000-2015, on grounds of membership of the Traveller Community when they were “thrown out” of the respondent hotel on 1st of March, 2017. The complainants referred complaints under the Equal Status Acts, 2000-2015 to the Workplace Relations Commission on the 8th of August 2017. 

In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 and under the Equal Status Acts, 2000-2015, the Director delegated the cases to me for investigation, hearing and decision and for the exercise of other relevant functions of the Director under III of the Equal Status Acts, 2000-2015. Written submissions were received from both parties.   As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing of these complaints on the 14th of February, 2018.  

It is submitted that

the complainants arrived at the respondent hotel where they successfully booked into the hotel for the night in question and were given their room key, 

the complainants went to their room where they showered and changed and left their belongings in the room, 

one of the complainant’s Mr. D went to the bar to meet a friend for a few drinks and Ms. D left the hotel with their two children intending to return later, 

while in the bar Mr. D was identified by the manager Mr. O as someone who had previously been involved in a fight in the bar and he was then refused service in the bar, 

following this a disagreement erupted involving the general manager and Mr. D which resulted in the Gardai being called and Mr. D being asked to leave the hotel, 

it is submitted that Mr. D s wife and children returned to the hotel while the disagreement was ongoing and after the Gardai had arrived and that they were asked to leave the hotel and were given a refund for the accommodation they had booked, 

it is submitted that Mr. D and his family were “thrown out” due to the fact that they are members of the Traveller community.    

It is submitted that

the complainants have named the incorrect respondent to these proceedings and given that the complainants have been represented since the beginning of the complaint process this complaint should not be permitted to proceed, 

the complainants arrived at the respondent hotel where they successfully booked into the hotel for the night in question and were given their room key following which they brought their baggage to their room, 

one of the complainants, Mr. D was seen in the hotel bar by the manager Mr. O who identified Mr. D as someone who was barred due to his involvement in a brawl on the respondent’s premises some months previously and during which a lot of damage had been caused to the respondent hotel, 

the manager instructed the bar staff not to serve Mr. D and told them that he had been barred due to his previous involvement in a brawl on the respondents premises, 

following this a disagreement erupted involving the manager and Mr. D during which Mr. D became abusive and threatening towards the respondent’s staff when he was refused service in the bar, 

this resulted in the Gardai being called and Mr. D being asked to leave the hotel, 

it is submitted that Mr. D and his family were not “thrown out” due to the fact that they are members of the Traveller community but that Mr. D was asked to leave due to the fact that he had been barred due to a previous fight on the premises and also due to the fact that he had become abusive and threatening towards the respondent’s staff after he was refused service in the bar.     

A number of preliminary issues were raised by the respondent in this case as follows

Respondent name

The respondent stated that the incorrect respondent had been named in the complaint form, the complainants had at the time named the hotel trading name in the complaint form i.e. the   X hotel. The respondent advised the hearing that the following a company restructuring the company was now named Y limited and submits that the complainant by naming X hotel had named the incorrect respondent. The respondent stated that the complainant was legally represented at the time the claim was prepared and lodged and stated that a simple CRO search would have advised them that the respondent name was now named Y Limited.

The complainants submit that X hotel is a trading name of the respondent and that the respondent is well aware that the claim is being taken against them by virtue of their appearance at the hearing. In addition, it is submitted that the respondent still trades under the name of the X hotel and that the receipt provided to the complainant at the time of the incident had on its headed paper named the X hotel.

In the present case, the respondent has argued that the proper respondent had not been identified in this case on the basis that “X hotel” is not a legal entity. Accordingly, the respondent maintains that the Tribunal has no power in law to investigate and hear the case.

In relation to this issue, I refer to the Decision of the High Court in the case of Capital Foods Emporium Ltd v Walsh [2016] IEHC 725. In that Decision, Barrett J considered whether a party to a complaint who “participates in proceedings to the extent that it acknowledges and accepts that those proceedings were rightly brought against it” can “later allege that the proceedings were not so brought.” In relation to that point Barrett J stated that the maxim Quod approbo non reprobo” (that which I approve, I cannot disapprove) applies.

In considering this issue I note that the respondent attended the hearing with its witnesses and was legally represented at the hearing. The respondent also provided a submission at the hearing.

I am also of the view that a more flexible and purposive view of the legislation should be applied to this complaint as previously considered in Equality Officer Decision No: DEC-S2011-013; Frances Comerford v Trailfinders Ireland Limited which states as follows:

“The Equal Status Acts is a remedial social statute to be widely and liberally construed. In the long title the 2000 Equal Status Act is expressed to be remedial legislation and as such it is submitted that the Tribunal must adopt a purposive approach in interpreting its provisions. This approach was adopted by the Supreme Court in The Bank of Ireland v. Purcell [1989] 1 I.R. 327. " As has been frequently pointed out remedial statutes are to be construed as widely and liberally as can fairly be done."

I note that the Equal Status Act is a social and remedial statute which is designed to permit all persons to make complaints to the Tribunal.     As a no-cost forum it was envisaged that there should be no need in many cases for barristers and solicitors to represent complainants and respondents, and thus the level of informality, or formality, must perforce be different to a courtroom in a formal legal proceeding.

Also, in Equal Status cases, there is often no necessary prior relationship between the parties. These combined factors substantially increase the possibility of a complainant not knowing the exact legal name of a respondent. However, since these are inherent in the circumstances being legislated for in the manner as legislated, a refusal to hear a claim due to an inadvertent misnaming of a respondent, would, in my opinion, amount to a frustration of the aims of the statute.       Accordingly, I consider that the Equal Status Acts cannot be interpreted in a fashion that would render them impotent and that requiring an exact identification of a respondent may render the Acts unworkable.

I, therefore, consider that it would be unduly harsh to dismiss this complaint because of misnaming the respondent and that it would also constitute a possible breach of the rights of the complainant to have access to justice. Once there is a clear identification of a respondent by a claimant, it is my view that the complaint should proceed, once the Commission has clarified the precise respondent for the purposes of permitting that person to make representations and to defend the allegation made against them. In the circumstances, I am satisfied that the proprietors of ‘X hotel' are answerable under the Equal Status Acts for the allegation of discrimination in this case.

Accordingly, I find that I have jurisdiction to investigate the present complaint.

The   second complainant named as Ms. D is in fact Ms. M as she is not married to Mr. D

The next preliminary objection raised by the respondent is in relation to the naming of the second complainant, Ms. D partner of Mr. D. It emerged at the hearing of the claim that the person identified as Ms. D is not in fact married to Mr. D and that she is in fact Ms. M by virtue of her maiden name which she still retains due to the fact that she is not married to Mr. D.   Mr. D and   Ms. M at the hearing explained that they refer to Ms. M as Ms. D and to her as being Mr. D s wife eventhough they are not married.   They explained that they are members of the traveller community and as such it is not acceptable for them to be living together and to have children together without being married which they submit is the reason the complainant Ms. M was named as Ms. D on the complaint form and the reason she is known as Mrs. D wife of Mr. D despite the fact that they are not actually married.     I am satisfied from the totality of the evidence adduced in relation to this matter that Ms. M who is Mr. D ‘s partner and mother to his children is the same person as Ms. D in whose name the complaint was made and who was present at the time of the alleged incident and that I have jurisdiction to hear the complaint lodged in Ms. D’s name.

Minors in whose names claims were taken, not present at hearing

The respondent raised an objection in respect of the fact that three of the named complainants are children who were not present at the hearing to give evidence or to prosecute the claims made on their behalf.    It was clarified on behalf of the complainants that there were only two of the complainants three children present on the day of the alleged discrimination and it was submitted that the claim made on behalf of Ms. W was being withdrawn (CA-00013020-001). The complainants advised the hearing that the complaint forms were in fact filled in by Mr. D’s sister on behalf of the complainants as they had returned to England shortly after the incident.

The complainant’s Mr. and Ms. D advised the hearing that these complaints submitted were made on behalf of the two parents and two of their children aged 3 and 7 who were present with them at the time of the alleged discrimination. Mr. D explained that the children were in school at the time of the hearing. I am satisfied that the claims taken on behalf of Ms. C and Ms. S can proceed on the evidence provided by their parents and that I do not require direct evidence from the minors in order for the claims to proceed.   I am thus satisfied that I do have jurisdiction to hear these complaints in the absence of the named children.

Intoxicating Liquor Act

The next preliminary issue raised by the respondent is in relation to the Intoxicating Liquor Act.     The respondent submits that I do not have jurisdiction to hear these claims as they should have been submitted under the Intoxicating Liquor Acts due to the fact that the allegations relate to an incident involving a licensed premises. The complainants submit that the complaints submitted relate to an allegation that the complainants were ‘thrown out’ of the respondent hotel having booked accommodation there for the night. I am satisfied form the totality of the evidence adduced that the complaints relate to a refusal in respect of accommodation and that such complaints do fall to be considered under the Equal Status Acts and accordingly I do have jurisdiction to hear these claims.

Conclusions of the Equality Officer

The issue for decision by me now is, whether or not the respondent discriminated against the complainants on grounds of membership of the Traveller community in terms of sections 3 of the Equal Status Acts, 2000-2015. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.   Claims of victimisation and of failing to provide reasonable accommodation were also made, but these were not pursued at the hearing.

Section 3(1) provides, inter alia, that discrimination shall be taken to occur where:

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds)’’

Section 3(2)(i) provides that: as between any two persons,

(i) that one is a member of the Traveller community and the other either is not (the “Traveller community ground”),

5Section 38A (1) provides that the burden of proof is: " Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary." It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that the prohibited conduct has occurred. Therefore, the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination. I am satisfied that the respondent is providing a service within the meaning of the Equal Status Acts.

Discrimination on grounds of membership of the Traveller Community    

In making my decision I must consider whether the existence of a prima facie case has been established by the complainants.   Section 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination.   It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties to the case.   

The first complainant Mr. D submits that he entered the respondent’s premises on the 1st of March 2017 where he had booked a room to accommodate his family on the night of the 1st of March 2017. 

Mr. D told the hearing that he and his wife Ms. D and two of their children arrived at the respondent hotel where they checked in at reception and were then provided with a key to their room. The complainants advised the hearing that they then went to their allocated room where they showered and changed and left their belongings in the room.   The complainants told the hearing that they then left the room and that Mr. D went to the bar to meet a cousin of his for a few drinks and that Ms. D left the hotel with their two children intending to return later. 

Mr. D told the hearing that he and his cousin enjoyed a drink in the bar but when Mr. D ordered a second round of drinks he was refused service.   Mr. D stated that this refusal happened following an instruction being issued to the bartender by Mr. O whom the complainant identified as the manager. 

The respondent agreed with Mr. Ds version of events up to this point and advised the hearing that it was while Mr. D was in the bar that he was identified by the manager as someone who had been barred due to his previous involvement in a fight in the bar.  Mr. D told the hearing that he was refused a second drink when he ordered it and that he was aware that this had happened after Mr. O had said something about him to the bar staff. Mr. D told the hearing that he was then approached by Ms. B general manager who told him that he had to leave.   Mr. D told the hearing that Ms. B then started shouting and screaming at him to leave and he stated that he then called his wife to come back to the hotel and that he also called the guards. 

The respondent advised the hearing that following the refusal of service in the bar Mr. D became very abusive and threatening towards the respondents staff. Witness for the respondent Ms. B, general manager told the hearing that she approached Mr. D and asked him to leave after Mr. O had informed her that Mr. D should not be there as he had been barred due to his involvement in a fight some months previously and during which tables had been overturned and glasses broken.

Ms. B told the hearing that Mr. D then became very loud and intimidating and that he began to shout abuse at her. Ms. B stated that Mr. D told her to “fuck off” and called her “thick” and “stupid”. Ms. B stated that she walked back out to reception to call the guards and stated that Mr. D followed her shouting abuse.   

Ms. B also told the hearing that Mr. D’s friend was taking pictures and videoing her on his phone while Mr. D threatened her telling her that “it was going to be the sorriest day of (her) life”. 

Ms. B told the hearing that the guards arrived about 20 minutes later and that she had asked them to remove Mr. D from the hotel. Ms. B stated that he still refused to leave stating that he had a room key and that he had paid for a room for the night and had left his baggage in the room.   Ms. B told the hearing that she was unaware until this point that Mr. D was actually booked into the hotel. Ms. B stated that she told Mr. D that he had to leave and that she would refund him his money. Ms. B stated that she then told Mr. D that he could get his belongings from the room but that he would have to be accompanied by the Gardai to do this.     Ms. B stated that the Gardai escorted Mr. D to his room to collect his belongings and that he was then given a refund for his room booking before being excorted off the premises by the Gardaí.

The complainants told the hearing that Mr. Ds wife and children returned to the hotel to find two squad cars outside the hotel and an argument involving Mr. D and the hotel manager taking place in the hotel lobby. The complainant’s wife, Ms. D told the hearing that Mr. D had called her to come back to the hotel as he was being thrown out.   Ms. D stated that she approached the reception desk and was told that they had to leave. Ms. D stated that she was not given a reason as to why she was being asked to leave but that she and her husband were escorted to their room by the Gardai to collect their belongings. Ms. D stated that they were then given a refund for the room booking before leaving the hotel. Witness for the respondent Ms. A told the hearing that Ms. D had requested a refund as her husband had been asked to leave the hotel. 

Mr. D at the hearing stated that he had agreed to leave the hotel after the Gardai had advised him to do so as his wife and kids were present witnessing this scene in the hotel lobby.   Mr. D stated that the gardai advised him that he should leave and that he did leave once he had retrieved his baggage from the room. 

It is submitted that Mr. D and his family were refused accommodation and ‘thrown out’ of the hotel due to the fact that they are members of the Traveller community.    Both parties agree that the Complainants were initially accepted as hotel guests and were given access to their room to shower and change and leave their baggage.   At this point the complainants had been welcomed as hotel guests and were provided with accommodation when requested, accommodation which they made use of once they checked in and went to their room to shower and change. It is clear from the evidence adduced that a problem only arose after the incident in the bar where Mr. D was refused service due to an allegation about his previous behavior and after this refusal an argument erupted between Mr. D and Ms. B general manager following which the guards were called to the hotel. The respondent advised the hearing that Mr. D was refused service in the bar due to the fact that he had been previously barred due to his involvement in a fight where considerable damage was caused to the hotel. The respondents witnesses then advised the hearing that the complainant Mr. D was asked to leave the hotel after he became abusive and threatening towards a female member of staff.    

Witness for the respondent Ms. A also advised the hearing that Mr. D’s wife then asked for a refund after Mr. D was told to leave the hotel. 

Accordingly it is clear from the evidence adduced that the complainants were not initially refused access to accommodation in the respondent hotel but were in fact checked in to the hotel and availed of its facilities to shower and change and leave their baggage in the room. I am satisfied that it was only after Mr. D went to the bar and was refused service following which it is submitted that Mr. D became abusive and threatening behaviour towards a female staff member, it was then that Mr. D was asked to leave the hotel.   

Having regard to the totality of the evidence adduced here I am satisfied that the respondent’s actions in asking Mr. D to leave the hotel was due to his threatening and abusive behaviour towards a female member of staff.   I am also satisfied that any person who was abusive and threatening towards a female member of staff would be treated in the same way irrespective of whether or not that person was a member of the traveller community. I am thus satisfied from the totality of the evidence adduced that Mr. D was not discriminated against by the respondent on grounds of membership of the traveller community. 

I am also satisfied that the respondent in this case is entitled to avail of Section 15 (1) of the Acts:

“nothing in this Act prohibiting discrimination shall be construed as requiring a person to dispose of goods or premises, or to provide services or accommodation or services and amenities related to accommodation, to another person (the ''customer'') in circumstances which would lead a reasonable individual having the responsibility, knowledge and experience of the person to the belief, on grounds other than discriminatory grounds, that the disposal of the goods or premises or the provision of the services or accommodation or the services and amenities related to accommodation, as the case may be, to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the goods or services are sought or the premises or accommodation are located”. [my emphasis] 

In addition, I am satisfied from the totality of the evidence adduced that Mr. D s wife left the respondent hotel after asking for a refund due to the fact that her husband Mr. D was being thrown out and that the other two complainants, the children of Mr. and Ms. D who were aged 3 and 7 could not stay in the hotel without their parents and had to leave with their parents. I am thus satisfied that Ms. D and her two children were not refused access to accommodation on grounds of their membership of the traveller community. 

Based on the totality of the evidence adduced in relation to these matters I am satisfied that the complainants were not discriminated against by respondent on grounds of membership of the Traveller community in respect of this matter.

CA-00013018-001

The complainant was not discriminated against by the respondent on grounds of membership of the Traveller Community contrary to section 3 of the Equal Status Acts, 2000-2015.

CA-00013019-001

The complainant was not discriminated against by the respondent on grounds of membership of the Traveller Community contrary to section 3 of the Equal Status Acts, 2000-2015.

CA-00013020-001

This complaint was withdrawn at the hearing.   The complainant was not discriminated against by the respondent on grounds of membership of the Traveller Community contrary to section 3 of the Equal Status Acts, 2000-2015.

CA-00013022-001

The complainant was not discriminated against by the respondent on grounds of membership of the Traveller Community contrary to section 3 of the Equal Status Acts, 2000-2015.

CA-00013023-001

The complainant was not discriminated against by the respondent on grounds of membership of the Traveller Community contrary to section 3 of the Equal Status Acts, 2000-2015.

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